BACH et al v. MCGINTY et al
MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 3/25/2015. (kas, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DANIEL BACH, et al.,
Civil Action No. 12-5853 (MAS) (LHG)
JOHN MCGINTY, et al.,
SHIPP, District Judge
This memorandum opinion resolves two pending motions before the Court. The first
motion is Defendant John McGinty's motion to dismiss (ECF No. 22), which Plaintiffs have
opposed (ECF No. 31). 1 The second motion is Plaintiffs Daniel and Carol Bach's motion for an
extension of time to file a motion for summary judgment (ECF No. 27). At the direction of the
Court, Plaintiffs have requested an extension to file for summary judgment, as they failed to file
their motion for summary judgment by the Court's August 25, 2014 deadline. 2 Defendant has
opposed Plaintiffs' request for an extension on several bases, including that the motion for an
extension itself was filed outside of the timeframe imposed by the Court. (ECF No. 34.)
Plaintiffs' opposition was filed on the motion's return date; however, Plaintiffs simultaneously
moved for an extension (ECF No. 32), which was granted (ECF No. 37).
This request for an extension comes after Plaintiffs' counsel missed multiple deadlines for the
filing of dispositive motions and multiple extensions of same. The August 25th deadline at issue
is in fact the third "deadline" for Plaintiffs' dispositive motion.
This action, originally filed in state court, involves a dispute over the parties' relative
financial responsibility for the sinking of a boat off the coast of Florida. The case was removed
from state court in September 2012 based on this Court's admiralty jurisdiction.3 Following the
completion of fact discovery, the parties requested leave to file dispositive motions, and the Court
set a corresponding deadline of August 8, 2014, by which the parties should file any dispositive
motions. (ECF No. 21.) Plaintiffs requested an extension of that deadline, to August 18, 2014,
which the Court granted. (ECF No. 23.) Plaintiffs, however, missed the extended deadline by one
day and submitted their motion for summary judgment, albeit with missing pages, on August 19.
(ECF No. 24.) As a result, the Court dismissed that motion without prejudice, instructed Plaintiffs
to refile a complete set of motion papers by a certain date, and set a deadline of September 8, 2014,
by which Plaintiffs must move for an extension pursuant to Federal Rule of Civil Procedure
6(b)(l)(B). (ECF No. 26.) Plaintiffs submitted their summary judgment motion as directed;
however, their motion for an extension was filed one day late, on September 9, 2014. (ECF No.
Meanwhile, Defendant filed his motion to dismiss on August 10, 2014. 4 Plaintiffs filed
opposition (ECF No. 31 ), albeit late, along with a motion for an extension to file opposition (ECF
This Court indeed possesses maritime jurisdiction over the matter. See 28 U.S.C. § 1333(1);
E. River S.S. Corp. v. Delaval Turbine, Inc., 752 F.2d 903, 906 (3d Cir. 1985).
The Court notes that Defendant's motion was also filed outside of the deadline for dispositive
motions set by the Court. Curiously, Plaintiff has not objected to the late filing, and the Court has
not had the opportunity to address it. The Court also notes that the Certification of Service, filed
with the motion by counsel for Defendant, states as follows: "On August 8, 2014, I filed with the
Court defendant's [moving papers]." (ECF No. 22-4.) This statement is inconsistent with the date
and time stamp from the Court's ECF filing system, which indicates that the motion was filed on
Sunday, August 10, 2014, at 7:11 am, using counsel's ECF login information. The Court is
troubled by this inconsistency. Nevertheless, with regard to the motion's timeliness, Plaintiffs
No. 32), which the Court granted (ECF No. 37). Of importance to the merits of Defendant's
motion, a related matter was also filed with this Court. In addition to suing Defendant, Plaintiffs
brought suit against the insurer of the boat in question, which was also removed to this Court
("Coverage Action"). See Bach v. Ace Am. Ins. Co., 12-2518. That case was dismissed as settled.
(12- 2518, ECF No. 16.)
Defendant's Motion to Dismiss
Defendant moves to dismiss the complaint for failure to state a claim on the grounds that
New Jersey's entire controversy doctrine bars Plaintiffs' claims. More specifically, Defendant
asserts that this matter should be dismissed because Plaintiffs should have brought suit against
Defendant in the Coverage Action. "Under the entire controversy doctrine, a party cannot withhold
part of a controversy for separate later litigation even when the withheld component is a separate
and independently cognizable cause of action." Paramount Aviation Corp. v. Agusta, 178 F.3d
132, 137 (3d Cir. 1999) (citing DiTrolio v. Anti/es, 142 N.J. 253 (1995)). Defendant contends that
the Coverage Action concerns the same set of facts and, as a result, the entire controversy doctrine
bars the maintenance of this action.
Defendant's motion fails for several reasons. For one, the entire controversy doctrine, an
affirmative defense, may only be applied on a Rule 12(b)( 6) motion, such as Defendant's, if it is
"apparent on the face of the complaint." Rycoline Prods., Inc. v. C&W Unlimited, 109 F.3d 883,
886 (3d Cir. 1997). Here, Plaintiffs' complaint makes no reference to the Coverage Action or any
action taken, and as a result, the defense is not apparent based solely on the allegations in the
were granted an extension of the deadline for dispositive motions, and out of fairness, Defendant
is entitled to a similar extension.
In addition, a second basis for denying Defendant's motion exists.
controversy doctrine will preclude claims brought in federal court only if the preclusive judgment
came from a New Jersey court, and thus the federal court is applying New Jersey's law of
preclusion, e.g., the entire controversy doctrine. Agusta, 178 F.3d at 145. Here, the "judgment"5
Defendant invokes came from federal court. As a result, New Jersey's preclusion doctrine is
inapplicable. 6 Last, Defendant has not plead any preclusion doctrine as an affirmative defense in
his responsive pleading. Id. at 13 7 ("The entire controversy doctrine is an affirmative defense,
waived if not pleaded or otherwise timely raised."). Accordingly, for these reasons, Defendant's
Plaintiffs' Motion for an Extension
As discussed, Plaintiffs have moved, out of time, for an extension to file their summary
judgment motion outside the deadline set by the Court. By order dated August 22, 2014, the Court
directed Plaintiffs to file a formal motion, by September 8, 2014, to extend time to file their motion
for summary judgment. (ECF No. 26.) Plaintiffs failed to do so. Rather, Plaintiffs filed a motion
for extension one day late, on September 9, 2014. (ECF No. 28.)
Standing alone, Plaintiffs' failure to file their extension motion on time warrants its denial.
The Court's August 22, 2014 Order stated that "Plaintiffs must file a motion ... pursuant to Rule
6(b)(l)(B) no later than September 8, 2014, if Plaintiffs would like the Court to consider their
motion for summary judgment.
No extension will be granted absent extraordinary
circumstances." (ECF No. 26 (emphasis in original).) Plaintiffs' motion papers do not at any
As noted, the Coverage Action was dismissed after the parties settled.
Rather, federal preclusion law is applicable. To the extent Defendant's motion can be construed
to invoke the doctrine of res judicata, that doctrine is also inapplicable: the Coverage Action did
not result in a judgment on the merits. See Purter v. Heckler, 771 F.2d 682, 690 (3d Cir. 1985).
point address the lateness of the extension motion, much less establish the existence of
extraordinary circumstances. For this reason alone, Plaintiffs' motion should be denied.
Other additional grounds, however, support the motion's denial. Plaintiffs have failed to
make a showing of excusable neglect with respect to their late-filed summary judgment motion.
Under Rule 6(b)(l), "[w]hen an act may or must be done within a specified time, the court may,
for good cause, extend the time ... on motion made after the time has expired if the party failed
to act because of excusable neglect." Fed. R. Civ. P. 6(b)(l). The factors to be considered in
making a determination of excusable neglect are set forth in Pioneer Investment Services Co. v.
Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993).
Under Pioneer, the excusable neglect inquiry must consider "all relevant
circumstances surrounding the party's omission. These include ... the danger of
prejudice . . . , the length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it was within the
reasonable control of the movant, and whether the movant acted in good faith.
Drippe v. Tobelinksi, 604 F.3d 778, 785 (3d Cir. 2010) (alteration in original) (quoting Pioneer,
507 U.S. at 395). Here, counsel for Plaintiffs identifies, as the cause of the summary judgment
motion's lateness, the complexities of the issues presented in this case, a busy summer work
schedule, difficulty coordinating the receipt of an expert's certification, and various technical
difficulties filing the motion. These sorts of challenges are ordinary, run-of-the-mill types of issues
facing legal practitioners. Furthermore, counsel's continued lateness in the face of successive
extensions has monopolized the Court's attention in this matter. In comparison to the triviality of
the issues faced by counsel, Defendant is prejudiced by being unable to rely on deadlines or
schedules set by the Court. Unfortunately for Plaintiffs, a client cannot be excused for the lateness
of counsel--clients must "be held accountable for the acts and omissions of their chosen counsel."
Pioneer, 507 U.S. at 397.
Moreover, even ifthe Court were to grant Plaintiffs' motion for an extension, the summary
judgment papers filed by Plaintiffs are deficient. Plaintiffs have not submitted a statement of
undisputed material facts, as required by Local Civil Rule 56.1; failure to provide such a statement
would support the motion's denial.
L. Civ. R. 56. l(a) ("A motion for summary judgment
unaccompanied by a statement of material facts not in dispute shall be dismissed.").
For the above reasons, Defendant's motion to dismiss is denied, and Plaintiffs' motion for
an extension to move for summary judgment is denied. An order reflecting this decision will
UNITED STATES DISTRICT JUDGE
Dated: March .:-~~, 2015
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